Puerto Rico and the politics of legal identity

One of the side effects to the ongoing unraveling of the Commonwealth of Puerto Rico, its spiraling economic downturn and the growing migration of its population to the mainland, is that the issues concerning its political and legal relationship with the United States is coming to the attention of a larger audience that historically had not paid much attention to it. Although Puerto Rico has been a territory of the United States since 1898 as a result of the Spanish-American War, many still are under the impression that it is, if not a foreign country, at least foreign enough for it not to qualify as “American.”

Perhaps some still today would agree with Associate Justice Henry Billings Brown’s early and suspect characterization in Downes v. Bidwell (1901), that the island of Puerto Rico “[…]is a territory appurtenant and belonging to the United States, but not a part of the United States[…]”. Associate Justice Brown is also the author of the majority opinion in Plessy v. Ferguson (1896), which upheld the doctrine of separate but equal in cases of racial segregation. As recent as 2007 the Bush White House Report on Puerto Rico reiterated the proprietary nature of the territory.

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Between 1901 and 1922 The Supreme Court produced a group of opinions referred to collectively as the “insular cases”, which articulated and consolidated the doctrine of unincorporated territories, allowing for the selective application of those constitutional rights deemed fundamental.

Of course, how to distinguish those constitutional rights which are fundamental from those that are not requires a degree of clairvoyance unavailable to most of us. This doctrine holds that the acquisition of territories by the United States does not necessarily imply that they will be incorporated as states at a future date, contrary to the historical experience that had been the order since the Northwest Ordinance of 1787. Recently, in Boumediene v. Bush (2008) regarding the right of habeas corpus petitions by enemy combatants held in United States Guantánamo Naval Base in Cuba, the Supreme Court seemed to suggest the continued validity of the insular cases.

From 1900 to 1917 Puerto Ricans were naturals of the United States, similar to the current situation of American Samoa. In 1917 the Jones Act granted American citizenship to Puerto Ricans, though the Supreme Court held in Balzac v. Porto Rico (1922) that this did not alter the unincorporated nature of the territory. It is precisely the statutory nature of our citizenship in conjunction with our unincorporated territorial status that precludes the full protection of the guarantees contained in the Fourteenth Amendment.

As has been noted by many, the doctrine of unincorporated territories is of judicial progeny and finds no textual authority under the Constitution. Article IV, Section 3, does not make a distinction between incorporated and unincorporated territories. A plain reading of the Constitution brings into question the historical context of such a racially and ethnically charged distinction made at the turn of the twentieth century. One would expect as a matter of legal consistency that those that argue for a textual or original reading of the Constitution review the underpinnings of this doctrine. Although former Associate Justices William Brennan and Sandra Day O’Connor at different times suggested that the territory of Puerto Rico may have been incorporated as a matter of fact, there has not been a clear and unambiguous declaration in this direction by the Supreme Court, by Congress or by the Presidency.

In the summer of 2016, the Supreme Court emitted two opinions: Commonwealth of Puerto Rico v. Sanchez Valle, which concerned Puerto Rico’s lack of sovereignty for purposes of avoiding the application of the double jeopardy clause to criminal defendants in the territorial courts; and Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, concerning the inapplicability of the Tenth Amendment to Puerto Rico and its inability to legislate a territorial bankruptcy law parallel to the Federal Bankruptcy Code. It is noteworthy that in both these recent opinions the Supreme Court studiously avoided the use of the term “unincorporated” with reference to the territory of Puerto Rico. That same summer Congress legislated the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) under the constitutional authority of its plenary powers over the territory for purposes of creating an Oversight Board and a bankruptcy-like proceeding under its Title III, which was invoked in May of this year.

These three recent legal events have had the political effect in insular politics of decisively undermining the long-held view by the territorial Popular Democratic Party (PPD) that claimed that in 1952 Puerto Rico achieved some sort of sovereignty independent from the authority of Congress.

The PPD’s obtuse contention that in 1952 Congress somehow ceded its plenary powers has not found support in any of the three branches of the federal government. It is precisely this lack of legal foundation and absence political coherence that lead them to boycott the June 11th, 2017 plebiscite in which the alternative of statehood prevailed.

As a matter of historical record, in the status plebiscites held in Puerto Rico in 1998, 2012 and 2017 the PPD failed to present cogent and constitutionally valid alternatives to our territorial status. Notwithstanding the continuing lobbying efforts by the PPD in Washington, this latest plebiscite marks a paradigm shift on the status question for Puerto Rico. As Americans, Puerto Ricans have a centennial claim on Congress to act expeditiously on this question.

Andrés L. Córdova is a professor at Inter American University of Puerto Rico School of Law.

The views expressed by this author are their own and are not the views of The Hill.